A sample of our Web Partners Agreement is provided for your review. When you apply for the TestDEN Web Partners Program, you will see this Agreement after you have submitted your Web Partners Application form.
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This Agreement contains the complete terms and conditions that apply to any individual, organization, or company participating in the TestDEN Web Partners Program. As used in this agreement, "we" or "us" means ACT360 Media Ltd. (a company incorporated under the laws of British Columbia, with offices at 1116 - 207 W. Hastings St., Vancouver, British Columbia, Canada, V6B 1H7) and TestDEN (a web site owned and operated by ACT360 Media Ltd. and located at the URL www.testden.com), "you" or "your" means [applicant's full name] (an individual, organization or company located at [applicant's address], and having an email address of [applicant's e-mail] and a phone number of [applicant's phone number]), and "product" refers to TestDEN Ultimate TOEFL Test Prep, TOEIC Test Prep, and Accent Reduction Course. This Agreement is made and entered into as of [application date].
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND ACT360 MEDIA LTD. BY CLICKING ON THE "I AGREE" BUTTON AT THE END OF THIS AGREEMENT, YOU ARE AFFIRMATIVELY STATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS SET FORTH HEREIN AND ARE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS TESTDEN WEB PARTNERS AGREEMENT, AND YOU AGREE TO BE BOUND BY THE TERMS HEREOF.
To begin the enrollment process, you will fill out a TestDEN Web Partners program application form and submit it. ACT360 Media Ltd. will evaluate your application in good faith and notify you of your acceptance or rejection. ACT360 Media may reject your application (at our discretion) if it falls under the Non-Qualifying Sites listing. If ACT360 Media rejects your application, you are welcome to reapply to the program at any time. If ACT360 Media accepts your application and your site is thereafter determined to be unsuitable (at our discretion), we may end your enrollment in the program and terminate this Agreement immediately.
Sites that are unsuitable and will not qualify for the Web Partners program include those that:
- Promote violence
- Promote sexually explicit material
- Discriminate based on race, sex, religion, national origin, disability, or sexual orientation
- Promote illegal activities
Do not apply if your site promotes one or more of these activities. By applying to our program, you are stating that your site (located at the URL [applicant's web site URL]) does not promote or endorse these activities.
2. UTILIZING OUR LINKS ON YOUR SITE
As a TestDEN Web Partner, we will make available to you TestDEN banner advertisements for your site, button links to our site, and/or text links to our site (these links referred herein collectively as "links", or individually as "link"), which, subject to the terms and conditions hereof, you may display on your site. In utilizing the TestDEN links you agree to cooperate fully with us in order to establish and maintain the TestDEN link(s). You shall display TestDEN link(s) prominently on your site as you see fit, and with our consent. You shall not alter, modify or expand the links in any way.
3. ORDER PROCESSING
ACT360 Media will process product orders placed by customers who follow links from your site to the TestDEN web site. We reserve the right to reject orders that do not comply with any requirements that we establish (either existing or future requirements). We will be responsible for all aspects of order processing and fulfillment, including order entry, payment processing, cancellations, returns, and related customer service. We will track the volume and amount of sales generated by your site and will make reports available to you. The form, content, and frequency of the reports may vary from time to time at our discretion. To permit accurate tracking, reporting, and fee accrual, you must ensure the links between your site and our site are properly formatted.
4. REFERRAL FEES
We will pay you, in accordance with the Referral Fee Schedule, referral fees on TestDEN Product sales identified by the unique URL to third parties. For a sale to be eligible to earn a referral fee, the customer must follow one of the links from your web site to the TestDEN web site, select and purchase the product using our automated ordering system, accept delivery of the product via e-mail, and remit full payment to us. We will not pay referral fees on any products that are added to the customer's shopping cart but are not purchased. However, we will we pay referral fees on purchases after the customer has re-entered our site if the customer previously followed a link from your site to our site. A referral fee will only be paid if the visitor to our site is tracked by the system to have originated from your web site. No referral fee will be paid if the visitor to our site cannot be tracked by our system.
5. REFERRAL FEE SCHEDULE
You will earn referral fees based on Qualifying Revenues according to the Referral Fee Schedule published by ACT360 Media. Qualifying Revenues are those derived by ACT360 Media and TestDEN from our sales of the Qualifying Products, excluding costs for shipping, handling, taxes, credit card processing fees, and bad debt.
The Referral Fee Schedule is as follows:
6. REFERRAL FEE PAYMENT
ACT360 Media will pay referral fees on a calendar quarterly basis. Approximately 30 days following the end of each calendar quarter, ACT360 Media will issue payment via a check in US$ for the referral fees earned during the recently completed quarter, less any taxes that we are required to withhold by law. However, if the referral fee due to you is less than the Required Value shown below, we will hold payment until the total amount due has reached the Required Value. In such instances, ACT360 Media will issue payment within 30 days following the end of the current calendar quarter. Calculation of qualifying referral fees is based solely on sales recorded by ACT360 Media. In the event that your calculation of referral fees differs from ours, the amount shown in our records will prevail.
Should credit card fraud, bad debt, or cancellation occurs for sales arising from your web site link, the corresponding referral fee will not be paid. If credit card fraud, bad debt, or cancellation occurs after referral fees have been paid for the given quarter, the corresponding referral fee will be deducted from your next quarterly payment. If there is no subsequent payment, we will send you a bill for the referral fee.
Required Values for referral fee payment are as follows:
7. SALES REPORTS
You will be given a password and have the ability to enter a password protected summary page to receive your sales statistics on a regular basis. This summary page will include information such as price of product sold, quantity of product sold, date of sale, and accumulated referral fees.
8. CUSTOMER POLICY
Customers who buy Products through the Web Partner Program will be deemed customers of ACT360 Media and TestDEN. Thus, ACT360 Media and TestDEN agreements and policies will apply to those customers. ACT360 Media will not provide customer names and contact information to you in order to protect customer privacy. However, ACT360 Media will provide access to a Web Partner summary page on the TestDEN web site that includes the following information: price of product sold, quantity of product sold, date of sale, and accumulated referral fees.
9. NON-EXCLUSIVE LIMITED LICENSE AND USE OF TESTDEN LOGOS AND TRADEMARKS AND WEB PARTNER LOGOS AND TRADEMARKS
We grant you a non-exclusive, non-revocable, non-transferable right to:
i) Access the TestDEN web site in accordance with the terms of this Agreement; and
ii) Use TestDEN graphics, logos, trade names, and trademarks in connection with such links in i), solely for selling the product on your site.
You may not alter or modify TestDEN graphics, logos, trade names, and trademarks in any way. You are entitled to use the graphics, logos, trade names, and trademarks to the extent that you are a member in good standing of the TestDEN Web Partner program.
You shall not make any specific use of any TestDEN graphics, logos, trade names, and trademarks for purposes other than selling product for ACT360 Media and TestDEN without first submitting a sample of such use to us and obtaining our prior written consent. You agree not to use the graphics, logos, trade names, and trademarks in a disparaging manner, or that portray TestDEN in a negative light. We reserve all our rights for the graphics, logos, trade names, and trademarks, and all other intellectual property rights. We may revoke the rights granted to you pursuant in this section at any time by providing written notice. You shall obtain no rights in and to our graphics, logos, trade names, and trademarks.
You grant us a non-exclusive license to utilize your names, titles, logos, and trademarks, and to advertise, market, promote, and publicize in any manner. Notwithstanding herein to the contrary, we shall not be required to so advertise, market, promote, or publicize. You hereby represent and warrant that you are the sole and exclusive owner of your site and of your logos and trademarks, and have the right and power to grant to us the license to use the same in the manner contemplated herein, and such grant does not or will not:
i) Breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon you; or
ii) Infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
The rights granted to you pursuant to this section, and the license granted to us, shall terminate upon the effective date of the expiration or termination of this agreement.
You shall not create, publish, distribute, or permit any written material that makes reference to us, without first submitting such material to us and receiving our written consent.
11. RESPONSIBILITY FOR YOUR SITE
You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. We will have no responsibility for the development, operation, and maintenance of your site and for all the materials that appear on your site. You hereby represent and warrant to us that materials posted on your site do not infringe or violate on the rights of any third parties, including copyrights, trademarks, privacy, or proprietary rights. Material posted on your site must not be libelous or otherwise illegal. We disclaim all liability for these matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your site.
12. TERM OF THE AGREEMENT
The term of this Agreement will begin upon our acceptance of your Web Partner Application Form and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement, you will immediately cease use of, and remove from your site, all links to our site, as well as all TestDEN graphics, logos, trade names, and trademarks, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the program. If this Agreement is terminated because you have violated the terms of this Agreement, or if this Agreement is terminated because your site becomes a Non-Qualifying Site (as set forth in Section 1), you are not eligible to receive any referral fees, even for referrals earned prior to the date of termination. If this Agreement is terminated for any other reason, you are only eligible to earn a commission on sales occurring during the term of the Agreement, and commissions earned through the date of termination will remain payable only if the related orders are not canceled or returned. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any of the terms and conditions contained in this Agreement, at any time and at our discretion. Notice of any change by e-mail to your address on our records, or the posting on our site of a change notice or a new agreement, is considered sufficient notice for notifying you of a modification to the terms and condition of this Agreement. Modifications may include, but are not limited to, changes in the scope of available referral fees, referral fee schedules, payment procedures, and program rules. All such modifications shall take effect 48 hours after we serve notice as provided above, unless we indicate otherwise. If any modification is unacceptable to you, your only recourse is to terminate this Agreement in writing. Your continued participation in the program, following our posting of a change notice or new agreement on our site, will constitute binding acceptance of the change.
14. RELATIONSHIP OF PARTIES
You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
15. LIMITATION OF LIABILITY
We will not be liable for indirect, incidental, special, or consequential punitive or multiple damages, including without limitation any damages resulting from loss of use, loss of business, loss of revenue, loss of profits, or loss of data, arising in connection with this Agreement or the program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the program will not exceed the total referral fees paid or payable to you under this Agreement.
We make no express or implied warranties or representations with respect to the Web Partners Program or any product sold through the Web Partners Program (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
17. INDEPENDENT INVESTIGATION
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
18. GOVERNING LAW
This Agreement will be governed by the laws of Canada and the province of British Columbia, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or provincial courts and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND ACT360 MEDIA LTD. BY CLICKING ON THE "I AGREE TO BE BOUND BY THE PROVISIONS OF THIS AGREEMENT" BUTTON AT THE END OF THIS WEB PARTNERS AGREEMENT YOU ARE AFFIRMATIVELY STATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS SET FORTH HEREIN AND ARE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS WEB PARTNERS AGREEMENT AND YOU AGREE TO BE BOUND BY THE TERMS HEREOF.
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If you would like to become a TestDEN Web Partner, complete and submit the Web Partners Application form.